essary to its validity that the grantee shall be certain. A statute which purported to grant the right to collect tolls upon logs floated in a navigable river, to any person or corporation which should improve the navigation of such river in the manner prescribed in the statute, is void for want of a certain grantee. If the State, or its agents or grantees, in improving the navigation, takes, flows, or otherwise injures private property, compensation must be afforded therefor.2 Statutes authorizing bridges, booms, and similar structures are not construed as authorizing the taking of the private property of riparian proprietors without their consent, further than is necessary to give a reasonable construction to the act.3 If a corporation is created "for making, laying and maintain both States, it may be sued in the State in which its principal place of business is, and its principal officers reside. Culbertson v. Wabash Nav. Co., 4 McLean, 544. See State v. St. Croix Boom Co., 60 Wis. 565. 1 Ibid.; Sellers v. Union Lumbering Co., 39 Wis. 525; Chenango Bridge Co. v. Paige, 83 N. Y. 178; 8 Hun, 292. 2 Thompson v. Androscoggin River Co., 58 N. H. 108; Orr v. Quimby, 54 N. H. 590; Wood v. Nashua Manuf. Co., 5 N. H. 467; Lebanon v. Alcott, 1 N. H. 339; Moor v. Veazie, 31 Maine, 360; De Camp v. Burns, 53 N. Y. S. 1035; De Camp v. Dix, 159 N. Y. 436; White Deer Creek Impr. Co. v. Sassaman, 67 Penn. St. 415; Sharpless v. Philadelphia, 21 id. 147, 170; Schuylkill Nav. Co. v. Freedley, 6 Whart. 109; Ten Eyck v. Delaware Canal Co., 18 N. J. L. 200; Clay v. Pennoyer Creek Impr. Co., 34 Mich. 204; Cooper v. Williams, 5 Ohio, 391; Ryan v. Brown, 18 Mich. 196; Hamilton v. Fond du Lac, 40 Wis. 47; Alexander v. Milwaukee, 16 Wis. 247; Green Bay Canal Co. v. Kaukauna W. P. Co., 90 Wis. 370; Steele v. Western Inland Lock Navigation, 2 Johns. 283. See Chicago v. McGraw, 75 Ill. 566; Nash v. Upper Appomattox Co., 5 Gratt. 332; James River Co. v. Thompson, 3 Gratt. 270; Avery v. Police Jury, 12 La. Ann. 554; Walker v. Board of Public Works, 16 Ohio, 540. If the water at a public ford is raised by the dam of a navigation company chartered by the State so as to make the ford useless, the public right is restored upon the destruction of the dam. Crump v. Mims, 65 N. C. 767; Bisher v. Richards, 9 Ohio St. 495. Where a navigation company, empowered by private act to make a river navigable, to take tolls and to alter bridges and highways, leaving them or others as convenient in their place, it was held liable to repair a bridge built by them at a point where they had destroyed a ford by deepening the water. Rex v. Kent, 13 East, 221; Rex v. Lindsey, 14 East, 317. If lumber in a boom is under the charge of its owners, and not of the boom company, which is empowered to charge boomage, the company is not liable for injury not caused by its negligence, to lands within the limits of the boom upon which the lumber floats on breaking adrift. Dever v. South Bay Boom Co., 1 Pugsley (N. B.), 109. 3 Hood v. Dighton Bridge, 3 Mass. 263; Thatcher v. Dartmouth Bridge, 18 Pick. 501. ing side booms in suitable and convenient places in a river," it has no authority to enter upon private lands adjoining the river without the owner's consent. The State or its grantees are not liable for remote or incidental injuries to individuals, caused by improving the navigation of those rivers which are public property, or for injuries, however serious, which being common to all others similarly situated, result from the regulation of the navigation. Tolls may be authorized for the use of a stream, the navigation of which has been improved, but which was navigable in its natural condition, if such navigation is thereby facilitated. But tolls cannot be exacted for the passage of rafts at high water, if the navigation is then unobstructed and the rafts do not use the locks," or for the use of 1 Perry v. Wilson, 7 Mass. 393. 2 Henly v. Lyme, 5 Bing. 91; Rex v. Pegham, 5 B. & C. 350; British Cast Plate Manufacturers v. Mere dith, 4 T. R. 794; Lansing v. Smith, 8 Cowen, 146; Spring v. Russell, 7 Greenl. 273; Parker v. Cutler Mill Dam Co., 20 Maine, 353; Moor v. Veazie, 31 id. 360; Sugar Refining Co. v. Jersey City, 26 N. J. Eq. 247; Tensman v. Belvidere Delaware R. Co., 26 N. J. L. 148; Hollister v. Union Co., 9 Conn. 436; Hooker v. New Haven Co., 15 Conn. 323; Alexander v. Milwaukee, 16 Wis. 247; Com. v. Fisher, 1 Penn. 462; Hart v. Hill, 1 Whart. 124, 136; Zimmerman v. Union Canal Co., 1 Watts & Serg. 346; Shrunk v. Schuylkill Nav. Co., 14 Serg. & R. 71; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 9; Bell v. McClintock, 9 Watts, 119; Bald Eagle Boom Co. v. Sanderson, 81 Penn. St. (Pt. 2) 402; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Schuylkill Nav. Co. v. Freedley, 6 Whart. 109; Newport Bridge Co. v. Foote, 9 Bush, 264; Barney v. Keokuk, 94 U. S. 324; Canal Appraisers v. People, 17 Wend. 571; 13 id. 355; Lansing v. Smith, 8 Cowen, 146; 4 Wend. 9; Radcliff v. Brooklyn, 4 N. Y. 195; Coster v. Albany, 43 N. Y. 399; 52 Barb. 276; Waddell v. New York, 8 N. Y. 95; 3 Ante, § 122. When a company is authorized by the State to improve the navigation of a stream, subsequent purchasers from the State are not entitled to damages for a diversion of the water of the stream by the company, for the purpose of improving the navigation. Black River Impr. Co. v. La Crosse Booming Co., 54 Wis. 659. See Same v. Ketchum, id. 313. A canal cut for the purpose of improving the navigation of a stream may be dedicated to the public. Weatherby v. Meiklejohn, 56 Wis. 73. 4 Nelson v. Cheboygan Slackwater Nav. Co., 44 Mich. 7. In this case Cooley, J., doubted whether the State can give to private parties the control of a navigable stream for improvement, with power to charge toll at discretion. 5 Green River Nav. Co. v. Palmer, 83 Ky. 646. that part of a stream where the dams or other improvements have been destroyed and not rebuilt.1 § 144. Same-Same.-The power of a corporation to demand toll, when chartered, like a canal company, for the purposes of public transportation, depends upon the terms of its charter and not upon the rules of the common law entitling the owner of property to demand such compensation and from such persons using his property as he may elect. If certain rates of toll are fixed by the charter of a corporation, a subsequent act, inflicting penalties on the corporation for exceeding the charter rates, is not a violation of the contract of the charter, and is valid.3 The right to impose toll, conferred upon a company, in consideration of its undertaking an enterprise for the public benefit, is not lost by reason of the fact that the work does not prove beneficial, or that the improvements mentioned in the statute are not in all respects completed, when such condition is not prescribed by its charter;" and the neglect or inability of a corporation to perform the duties required by its charter, although sufficient to produce a forfeiture, or to make it liable to indictment,' is a matter be 1 Lehigh Coal & Nav. Co. v. Brown, quence of the same defects. Side 100 Penn. St. 338. Booms v. Weld, 6 Maine, 105; Penob2 Perrine v. Chesapeake Canal Co., scot Boom Co. v. Baker, 16 Maine, 9 How. 172. 233; Penobscot Boom Co. v. Wad 3 Camden R. Co. v. Briggs, 22 N. J. leigh, id. 235. Bridge-tolls may conL. 623. 4 Bennett's Branch Impr. Co.'s Appeal, 65 Penn. St. 242, 251; Susquehanna Boom Co. v. Dubois, 58 Penn. St. 182. See Com. v. Allegheny Bridge Co., 20 Penn. St. 185; Carman v. Clarion River Nav. Co., 81 Penn. St. (Pt. 2) 412. See Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 43; Kellogg v. Union Co., 12 Conn. 18; Com. v. Breed, 4 Pick. 460. Proprietors are liable for losses occasioned by want of ordinary care and the incapacity of their piers and booms to secure logs. Weld v. Androscoggin Side Booms, 6 Maine, 93. But they are entitled to toll on logs actually stopped, although other logs of the same owner are lost in conse stitute an interest in land within the statute of 9 Geo. 2, ch. 36. In re Davis, 43 Ch. D. 27; In re Christmas, 55 L. T. N. S. 197. 5 Tamar Nav. Co. v. Wagstaff, 4 B. & S. 288; Quincy Canal v. Newcomb, 7 Met. 276; Carmen v. Clarion River Nav. Co., 33 Leg. Int. 239; 2 W. N. C. 720. See ante, § 115; Port Credit Harbor Co. v. Jones, 5 Q. B. (Can.) 144. 6 See Swift River Impr. Co. v. Brown, 77 Maine, 40. 7 Lumbard v. Stearns, 4 Cush. 62; Com. v. Newburyport Bridge, 9 Pick. 142. If a penalty is imposed by the statute incorporating a bridge company for unreasonably delaying or neglecting to raise the draw of the bridge, such delay or neglect does tween the State and the corporation, which cannot be taken advantage of collaterally until it is judicially determined,' when the charter contains no reservation or condition with a view to the particular interests of individuals. A corpoBRARY tion which is authorized by its charter to improve the nara OF tion of a river, is not liable for injuries sustained by thERSITY OF ICHIN who navigate the river, if it has not completed the improvement or charged toll, or if the charter merely gives permission and does not create an obligation to make the improvement. But, being so authorized, it is bound to keep the river not operate as a forfeiture of the franchise. Com. v. Breed, 4 Pick. 400. If the company builds its bridge and takes toll, it may be indicted before the expiration of the time specified for completing the bridge, for a failure to comply with the requirements of its charter. Com. v. Newburyport Bridge, 9 Pick. 142. An indictment for neglect to provide a pier at the draw of the bridge should directly aver that a bridge has been built. Ibid. If a navigation company fails to improve the navigation of a stream as required by its charter, it will not be restrained by a court of equity from collecting the tolls allowed by the charter. The proper proceeding is by quo warranto at suit of the Commonwealth. Pixley v. Roanoke Nav. Co., 75 Va. 320. 1 Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 46; Kellogg v. Union Co., 12 Conn. 20; Hartford Bridge Co. v. East Hartford, 16 Conn. 173; Pearce v. Olney, 20 Conn. 557; Lewiston Steam Mill Co. v. Richardson Lake Dam Co., 77 Maine, 337; Hamilton v. Annapolis R. Co., 1 Md. 553; 1 Md. Ch. 107; Com'rs v. State, 9 Gill, 397; New Central Coal Co. v. George Creek Coal Co., 37 Md. 537; Com. v. Breed, 4 Pick. 460; Shand v. Gage, 9 S. C. 187; Young v. Harrison, 6 Ga. 130; Buncombe Turnpike Co. v. McCarson, 1 Dev. & Bat. (N. C.) 306; People v. Reclamation District, 53 Cal. 346; Sterrett v. Houston, 14 Texas, 153; State v. New Orleans Nav. Co., 7 La. Ann. 679; Osborne v. Knife Falls Boom Co., 32 Minn. 412. Upon a proceeding by the State to have a valid franchise declared forfeited or abandoned, the State has the burden of proof. State v. Haskell, 14 Nev. 209. No action is necessary to enforce or to judicially establish a forfeiture which is expressly declared by statute. Upham v. Hosking, 62 Cal. 250. A franchise may be adjudged forfeited upon proof of long-continued and intentional nonuser, but only in a proceeding to test the right; and a court of equity will not grant an injunction when the effect will be to work, by indirection, a forfeiture of a charter, in which there is no provision for its termination. Ottaquechee Woolen Co. v. Newton, 57 Vt. 451. 2 Proprietors v. Hahn, 28 Maine, 300; Riddle v. Locks & Canals, 7 Mass. 169. 3 James River Co. v. Early, 13 Gratt. 541. This was an action of trespass on the case to recover the value of a boat and its cargo of salt, lost by striking a snag in the Kanawha river, on which the specified improvements were to be made at certain places only. The company was held not liable for the loss, which occurred at a place that it was not charged to keep in order. See The Leona, 67 Texas, 303. 4 Ante, § 115; Goodrich v. Chicago, in a navigable condition, in consideration of the tolls it receives, and is liable to a navigator who is injured by its neglect of such duty. If real estate acquired by the corporation is necessary for the uses in which the public is concerned, it cannot be sold or taken on execution, apart from the incidents and burdens of the franchise, so as to give the purchaser a title divested of the obligations of the company. In general, if no provision is made in the charter, the franchise of incorporation, when granted for the purpose of constructing works of public utility, and collecting tolls, is a personal trust and not assignable by voluntary conveyance or forced sale; but a legislative grant to a particular person, his associates and assigns, gives him the right to select the persons to be associated with him in the enterprise. If a private corporation holds an entire franchise for the improvement of the navigation of a river between certain points, with power to lease a portion of the works, a lessee of such portion holds subject to the liability to forfeiture of the entire franchise in case the lessor makes default in duly improving any other portion of the stream.5 Failure on the part of the corporation to improve the streams, or keep them in order, as its charter prescribes, is not remedi 20 Ill. 445; Chicago v. McGraw, 75 Ill. 566; Mills v. Brooklyn, 32 N. Y. 489; Daniels v. Denver, 2 Col. 669. 3 Ibid.; Lord v. Oconto, 47 Wis. 386; People v. Duncan, 41 Cal. 507; O. R. Co. v. O. B. Co., 45 Cal. 365; Louis 1 Tompkins v. Kanawha Board, 21 ville Water Co. v. Hamilton, 81 Ky. W. Va. 224. 2 Gue v. Tide Water Canal, 24 How. 257: East Alabama Ry. Co. v. Doe, 114 U. S. 353; Gooch v. McGee, 83 N. C. 59 (restricting State v. Rivers, 5 Ired. 297, and Arthur v. Bank, 9 S. & M. 394); Ammand v. Turnpike Co., 13 Serg. & R. 210; Railroad Co. v. Colwell, 39 Penn. St. 337; Foster v. · Fowler, 60 id. 27; Youngman v. Railroad Co., 65 id. 278; Morris Canal Co. v. Central R. Co., 1 C. E. Green, 419; Coe v. Railroad Co., 10 Ohio, 372. See Att. Gen. v. Roanoke Nav. Co., 84 N. C. 705. An execution sale of the booms and piers of a boom company passes no right to the leasehold of shores and flats used by the company. Rollins v. Clay, 33 Maine, 132. 517; Tippets v. Walker, 4 Mass. 595; East Boston Freight R. Co. v. Hubbard, 10 Allen, 459, note; Roper v. McWhorter, 77 Va. 214; Mille Lacs Impr. Co. v. Bassett, 32 Minn. 375. The distinction is between the franchise to be a corporation and the franchise to maintain and operate the works; the latter may be mortgaged, etc. Memphis R. Co. v. Railroad Commissioners, 112 U. S. 609; Ragan v. Aiken, 9 Lea (Tenn.), 609. The mortgagee of the franchise, tolls, etc., after foreclosure, can sue only in the mortgagor's name. Whiteside v. Bellchamber, 22 C. P. (Can.) 241. 4 Powell v. Maguire, 43 Cal. 11. 5 People v. Kankakee Imp. Co., 103 Ill. 491. |